Earlier this week, FCC chairman Kevin Martin announced long-promised revisions to America’s media-ownership rules. As I point out in my latest essay for the City Journal, the results were extremely disappointing and could have grave consequences for the long-term viability of struggling media operators.
Media Deregulation Is Dead
The FCC’s toothless reforms are a victory for the status quo.
November 15, 2007
by Adam Thierer
This week, Federal Communications Commission chairman Kevin Martin announced long-promised revisions to America’s archaic, convoluted media-ownership rules. The result: no serious deregulation, just tinkering at the margins. In fact, of the half-dozen rules currently on the books, Martin is proposing to revise only one—the newspaper/broadcast cross-ownership rule. “No changes to the other media-ownership rules [are] currently under review,” Martin’s press release notes tersely, leaving many TV and radio broadcasters wondering when they will ever get regulatory relief.
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Glenn Greenwald reports that the House will be bringing the RESTORE Act up for a vote today. I wasn’t thrilled with this legislation last time it was brought up for a vote, but there have apparently been enough improvements made to convince Rep. Holt to vote for it, which is a good sign. It’s certainly much better than the horrible legislation in the Senate version, and crucially it includes no immunity for telecom providers.
Here are some good comments by Rep. Lloyd Doggett of Texas:
http://www.youtube.com/v/E-BZGYRUu28&rel=1
Now might be a good time to call your Congresscritter and let him or her know how you feel about warrantless surveillance and telecom immunity.
Update: Just to be clear, the suggestion that you call your member of Congress is a personal recommendation, and shouldn’t be construed as the position of any organizations with which I might be affiliated.
When Google Privacy Counsel Peter Fleischer introduced the company’s call for global privacy standards, I thought he mangled some basic concepts. He’s not the first, and others have gotten it worse – and more threateningly so – since.
But I’m impressed with the general tenor of his recent comments encouraging a focus on preventing consumer harm. Many in the privacy community are deeply wedded to “Fair Information Practices” – a varying set of rules that, followed by rote, would allegedly take care of privacy. Well, they don’t. They produce a lot of churn, and they soak up a lot of energy with regulation, compliance efforts, and what-have-you. But they don’t address what matters: protection of actual privacy and prevention of consumer harm.
“FIPs” aren’t all bad. Some of them are good. Some conflict with others. They’re just not a helpful framework for addressing the problems presented to us by the information age.
Last year, the DHS Privacy Committee produced a document unpacking the human values that matter (generally referred to as “privacy”). The focus should be on how information practices affect privacy and related values – chiefly, whether modern information practices cause people harm.
In the recent Verizon Uprisin’ (successor to the Comcast Kerfuffle – how’m I doin’?), the blogospheric back-and-forth between TLFer Tim Lee (writing at TechDirt) and TLFriend Ed Felten illustrates nicely the difficulty with both parts of the case for ‘net neutrality regulation.
The first question is whether there is a problem that needs solving. The two disagree about whether Verizon’s operation of its DNS servers is a ‘net neutrality violation at all.
The second question is whether the problem is better solved by regulation or by market processes (expert agitation, consumer pressure, etc. that carry with them the threat or reality of lost customers and profits). As a technical matter, Tim points out that people are free to point their computers to another DNS server, such as OpenDNS. Ed says “it might turn out that the regulatory cure is worse than the disease.”
Even among those who disagree on whether there’s a substantive ‘net neutrality violation here, regulation doesn’t seem to be the cure. Even Harold Feld hasn’t written a triumphal post. (Though, in fairness, he seems to be distracted – and oh so giddy – about cable regulation.)
[James and Hance already commented on this issue, but here’s my take on the FCC opening another front in its ongoing “war on cable” … ]
Despite steadily increasing video competition and consumer programming choices, the Federal Communications Commission (FCC)–or at least current Chairman Kevin Martin–seems to be pursuing what many journalists and market analysts have described as a “war on cable.” As Craig Moffett, a senior analyst with Sanford Bernstein & Co, says, “Over the past year, the Chairman has adopted an almost uniformly anti-cable stance on issues ranging from set-top boxes (CableCards), digital must carry requirements, cable ownership caps, video franchising rules, and the abrogation of exclusive service contracts with [apartment owners].”
And Moffett is only summarizing the economic regulation that Martin’s FCC is currently pursuing against cable. Chairman Martin has also proposed the unprecedented step of imposing content controls on pay TV providers. He wants to extend broadcast industry “indecency” regulations to cable and satellite operators, even though the constitutionality of those rules is being questioned in court. And Chairman Martin has also suggested that “excessively violent” programming on pay TV should be regulated in some fashion. Finally, he has strong-armed cable operators into offering “family-friendly tiers” of programming even though there was no demand for them and consumers have shown little interest in them now that they have been offered.
And more cable regulation appears to be in the works. According to recent press reports, Chairman Martin is considering breathing new life into a little-known provision of the Cable Communications Act of 1984 known as the “70/70 rule.” Under the 70/70 rule, if the Commission finds that cable service is available to 70% of households and 70% of those homes subscribe, then the FCC can “promulgate any additional rule necessary to provide diversity of information sources.”
Chairman Martin apparently believes that cable has crossed both 70/70 thresholds and that comprehensive regulation of the cable industry is now warranted. What that means in practice remains to be seen, but it could include common carriage-like price controls on cable systems. The Wall Street Journal reports that a significant reduction (perhaps 75%) in the rates cable operators charge programmers for leased access might be the end result. In the long run, an FCC declaration that the 70/70 rule has been triggered could also lead to the imposition of some of the other regulatory proposals mentioned above.
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In response to a post I did on Verizon’s obnoxious DNS policies, a Techdirt reader writes:
Verizon DOES block your ability to use 3rd-party mail servers. GMail is web-based, son. A server at a friend’s ISP, connecting over port 25, is BLOCKED by Verizon, period end of story.
Now, I use another port and so go my merry way, but Verizon, having blocked port 25, can block any ports they wish under the same guiding principle. Verizon sets limits.
And another reader responds:
Isn’t that standard practice? To (somewhat) prevent spoofing email, ISPs require outbound mail to go through in-house servers, but inbound on port 110 can be any source you have access to.
Does anyone know if this is true? I’ve occasionally encountered Wifi connections in hotels or coffee shops that block outbound SMTP, but I’d always assumed that real residential ISPs don’t do that sort of thing. Such a policy does little or nothing to combat spam, but it sure is a pain in the butt for those of us who use real mail clients and don’t use our ISP’s SMTP servers.
Relatedly, would such a policy a violation of network neutrality? It sure seems like it violates the letter of Snowe-Dorgan, which would imply that thousands of annoyingly-configured hotspots would instantly become illegal if network neutrality regs passed.
Via Slashdot, I think this is intended to illustrate an appalling lack of civic-mindedness among voters. But I’m more incredulous at the number of people who wouldn’t take the money:
Only 20 percent said they’d exchange their vote for an iPod touch.
But 66 percent said they’d forfeit their vote for a free ride to NYU. And half said they’d give up the right to vote forever for $1 million.
But they also overwhelmingly lauded the importance of voting.
A million dollars in exchange for never voting again? You’d be an idiot not to take that deal, and I bet that a lot of people who said they wouldn’t take it are lying to the pollsters because they know that’s the answer they’re supposed to give. If there were
actually a million dollars on the table, I would be shocked if less than 80 percent of people took it. I mean, look: if you’re feeling guilty about not doing your civic duty, take the money and use half of it to write hundreds of $2300 checks to the politicians you would have voted for. Large campaign contributions have a much bigger impact on the outcome of the election than a single vote does, and you’d have much more freedom to target your contributions in ways that will affect the outcomes of political debates.
The Tiffany & Co v. eBay trial began yesterday, and as this news article noted, the case is about who is responsible for the policing of counterfeit products on eBay.
It’s an important case, and implicates all e-commerce marketplaces, so it’s impact extends beyond just eBay. And its resolution may come down to whether you believe
sites like eBay are akin to a traditional retail store or more like a
facilitator between buyers and sellers, much like a flea market. Tiffany claims that eBay participates in and facilitates the
counterfeiting and trademark infringement of
its jewelry and other items in violation of the Lanham Act.
But here’s the kicker: Tiffany wants to enjoin eBay from selling any item on its site has hasn’t been made, sponsored, or approved by Tiffany. This goes too far, way beyond the policing of trademarks.
Instead, it appears that Tiffany would like to control the distribution channel, and use trademark law to do so. Retailers and distributors often hate that their products can be sold outside of their control. We’ve seen this attempt to control distribution when venues complain about the sale of event tickets on secondary market sites like StubHub, RazorGator and eBay.
eBay has an extensive program for dealing with intellectual property rights violations. Trademark owners should be vigilant when protecting their brands, not vindictive towards marketplaces that are themselves not the bad actors.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.